Article about Sam Sloan in "American Lawyer" magazine, October, 2002 issue

An article about Sam Sloan has appeared in American Lawyer Media Magazine. The article is entitled "Building A Better Advocate" by Tony Mauro. The article discusses the increasingly clubby nature of the US Supreme Court. The name Sam Sloan comes in because Sloan was the last non-lawyer ever to present oral argument to the US Supreme Court.

Here is what the article says about Sam Sloan:

"In 1978 Lorson assisted Samuel Sloan, a New York bond trader who argued his own case in SEC v. Sloan-the last time, apparently, that a nonlawyer argued before the Court. Sloan won, and the record reveals that the advocate arguing against him was an SEC lawyer by the name of Harvey Pitt."

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Here is the full text of the article:

Copyright 2002 NLP IP Company - American Lawyer Media All Rights Reserved.

The American Lawyer

October 1, 2002

SECTION: COLUMNS; Vol. October 2002

LENGTH: 1210 words

HEADLINE: Building A Better Advocate By Tony Mauro

BYLINE: By Tony Mauro


As the Supreme Court's fall term begins, the Court is more than ever taking on the feel of a club, where everyone knows everyone else and newcomers are tolerated but not necessarily welcomed. It is not just that the justices have been together for more than eight years without a change in membership-the longest period of stability since the early 1800s, and long enough for all nine to reach a rare comfort level with one another. It is also that the advocates who appear before them seem more and more familiar-a confr rie of lawyers who argue more frequently at the Court than was common among their predecessors. Among the three dozen cases the Court has already agreed to consider this fall, it is difficult to flip through the briefs without bumping more than once into the names of Supreme Court regulars.

After a bit of a dry spell, Carter Phillips of Sidley Austin Brown & Wood and Harvard Law School's Laurence Tribe will be back arguing before the Court multiple times this term. Mayer, Brown, Rowe & Maw is gearing up for three arguments, possibly all before the end of the calendar year. Walter Dellinger and Seth Waxman (both former solicitors general) are awash in clients seeking certiorari petitions, amicus curiae briefs, and oral arguments. They often file briefs in the same cases and have found themselves flipping coins to decide which one will argue a case. Cocounsel in one case are finding themselves on opposing sides in the next.

At a recent panel discussion on the Supreme Court sponsored by Legal Times, a sibling publication of The American Lawyer, Carter Phillips remarked on the trend and even drew a connection between the stability of the Court and the familiarity of the lawyers who argue there. "When I went into private practice, the Court was taking about 160 cases a term, but there were virtually no practitioners before the Court who appeared more than once every three or four years," Phillips said. "If you look at the cases right now, and just look at the names of the firms that have a significant Supreme Court practice, you will see how many of them are involved in those cases . . . it's much more of a Supreme Court bar in the classic sense of that term that exists today, and I think that that helps with the oral arguments."

Phillips continued, "The justices, I think, gear up for the arguments because they know for the most part they're going to get good advocates. They know we're going to be responsive and that if they have real questions and if they're trying to communicate with the other members of the Court, they can do it effectively to the person who's answering the questions." It is not uncommon now to see both sides of a case argued effectively by Supreme Court veterans, Phillips said, "whereas when I clerked in the seventies and started in the eighties, it was a vast wasteland."

The ascendancy of the Supreme Court bar poses a formidable challenge to outsiders who want to join the club. The challenge became ineffably harder September 1, when the Court's chief deputy clerk, Francis Lorson, retired. With grace and gentility, Lorson had helped Supreme Court advocates-veterans and novices alike-navigate the Court's rules and customs for a generation.

Lorson, 58, never told lawyers what to do, he emphasized in a recent interview-just "what could be done" to help the Court do its work more efficiently and, incidentally, to serve the client better. He has seen Supreme Court advocates of all kinds, but has special memories of those who have argued pro se before the Court. Most recent was Jennifer Harbury, a lawyer who argued unsuccessfully in March in Christopher v. Harbury. In 1978 Lorson assisted Samuel Sloan, a New York bond trader who argued his own case in SEC v. Sloan-the last time, apparently, that a nonlawyer argued before the Court. Sloan won, and the record reveals that the advocate arguing against him was an SEC lawyer by the name of Harvey Pitt.

Lorson says that there is still no rule that bars a nonlawyer from arguing before the Court, but that possibility seems ever more remote in the era of Supreme Court specialization.

With Lorson in retirement, help in becoming a better Supreme Court advocate is still available, albeit in printed form. BNA Books has just published an eighth edition of Supreme Court Practice, the undisputed bible for Supreme Court advocates. Mayer, Brown's Kenneth Geller, a coauthor of the book, jokes that Lorson's departure will trigger an increased press run of the book. "Particularly with Frank gone, lawyers will need this book," he says.

Indeed the 1,290-page tome-known as "Stern and Gressman," after its original authors-is crammed full of sound advice for oral advocates before the Court, such as this admonition not to read straight from a brief: "Nothing is better calculated to put the justices to sleep, or at least to divert their attention to other matters." The authors also advise lawyers to "sternly suppress" any thought of signaling to the justices that they are taking up too much of the advocate's time with long or repetitive questions: "This is not merely because of the deference due the Court; counsel, like a salesman, is trying to purvey an idea, and no salesman ever persuaded a customer by irritating him."

Another book of advice for high court advocates is due out by Thanksgiving. David Frederick-a onetime Byron White clerk and former assistant to the solicitor general who is now a partner at Kellogg, Huber, Hansen, Todd & Evans-has written Supreme Court and Appellate Advocacy: Mastering Oral Argument, to be published by West. Using real-life incidents, Frederick offers advice on avoiding common mistakes, on preparing for argument, and on good openings and closings, among other topics. It includes a foreword by Justice Ruth Bader Ginsburg, who, as an ACLU lawyer in the 1970s, argued more cases before the Court than any current justice. Ginsburg, like Frederick, has seen the Supreme Court bar evolve. Whereas frequent advocates used to be rare, says Frederick, now one can almost sense the justices settling in for a good argument if they see that a veteran is about to rise before them.

"They always benefit from having the most experienced advocates," says Frederick, though he hastens to add that "someone from Paducah can argue" just as persuasively. The justices always agree, making it clear that at times the hometown lawyer who knows the history of the case inside out and who can speak plainly about the heart of an issue can be just as effective as a veteran member of the club.

But if this coming term is any indication, fewer and fewer newcomers will be trying to scale the law's Mount Olympus. The tight circle of advocates who know each other seems to be locking up the business. The Stern and Gressman book recounts an oral argument in 1993 in which counsel for the petitioners referred to opposing counsel as "my adversary." Justice Antonin Scalia interrupted the lawyer to say that while the attorneys' clients were perhaps adversaries, the other lawyer should be considered "not your adversary. . . . He's your friend."

With the increasingly clubby profile of the Supreme Court bar, Scalia's comment rings truer than ever.

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